The ruling, delivered on 27 February, supported Malta-licensed operators that had conducted business in Austria’s market without holding a local license. The court concluded that prior Austrian judgments conflicted with Maltese public policy.
Austria’s online gambling scene is predominantly controlled by monopoly operator Casinos Austria. Currently, Win2Day is the only licensed online product available in the country.
The market, along with Germany, has witnessed several high-profile player loss claims, where individuals sought to reclaim losses from offshore operators deemed illegal in these jurisdictions.
Players gambling outside this monopoly have often found themselves in legal battles, with some receiving money back from illegal operators, while others were compelled to return winnings to unlicensed operators. Many involved operators hold licenses from Malta.
## Malta Judgment
The recent Maltese ruling pertains to a player who gambled in 2020 and lost €38,325 ($39,845/£31,653) via Malta-licensed operator European Lotto and Betting Limited, known as Lottoland.
An Austrian court had previously decided that the bettor could recover their losses due to the operator’s illegal status in the market, but the case was brought to a local court by the Malta Gaming Authority (MGA).
Malta’s courts argued that EU Article 56 in the Treaty on the Functioning of the European Union (TFEU) allows for services (such as online gambling) to be provided across EU states. It is described as a “primary source of community law” and a “fundamental rule of the legal order” for both the EU and Malta.
Malta’s court also contended that Austria’s federal law on games of chance and its online gaming monopoly contravened the TFEU.
Consequently, the Maltese court refused to enforce the Austrian judgments, stating that they were against Maltese public policy.
Representing the MGA, Davinia Cutajar, legal partner at WH Partners, remarked that the decision holds significant implications for the gambling industry, emphasizing the autonomy of Maltese regulatory authorities and the jurisdiction of Maltese courts over gambling-related issues.
Cutajar also noted that the compliance of the Austrian monopoly with EU law has been questioned multiple times.
She highlighted that numerous rulings from the Court of Justice of the European Union (CJEU) supported the stance that Austria’s monopoly model violates Article 56 of the TFEU.
Nigel Birrell, group CEO of Lottoland, welcomed the landmark decision in Malta, stating it reinforced the operator’s previously expressed position on the issue.
## Past Austrian Decisions
In 2021, the Austrian Supreme Court declared that foreign igaming brands were operating illegally in the country, rendering player contracts invalid and prompting players to seek reimbursement for losses.
That decision affected Betclic Everest’s subsidiary Bet-at-home, which was ordered to pay €2.8m in player losses nearly three years after exiting the market (expected in August 2024).
In another case last year, an Austrian customer was instructed to return winnings to an unnamed unlicensed operator in the market. The courts determined that both player and operator violated Austrian gambling laws, thereby invalidating their contract.
This decision concluded that both parties knowingly engaged in illegal operations, and the player was ordered to pay the operator’s court fees.
## Austrian Online Gambling Facing Liberalisation
Such player disputes involving Austria and Maltese-based operators may decrease in the coming years, as Austria is likely on the brink of ending the country’s online casino monopoly.
Casinos Austria was granted a 15-year license, giving it a monopoly on online gambling. However, this license is set to expire on 30 September 2027, and Austrian authorities are expected to commence the tendering process for new licenses this year.
Austrian Betting and Gaming Association VP Simon Priglinger-Simader expressed optimism earlier this month that Austrian online gambling might move away from the monopoly system.
This past December, European Gambling and Betting Association (EGBA) president secretary-general Maarten Haijer urged Austria to open up online gambling.
“The evidence from across Europe is clear and compelling: multi-licensing works,” Haijer said. “It brings gambling activity into the regulated market, protects consumers, and generates significant tax revenue.”
The Maltese Civil Court has ruled that it will not enforce Austrian court judgments favoring players receiving refunds for gambling on sites that were not locally licensed.